Aboriginal Rights

This is a guest post by Allan R. Gregg, one of Canada's most recognized and respected senior research professionals and social commentators. Gregg is Chair of the Walrus Foundation and is a member of the DeSmog Canada Advisory Council. The original article is published on his website www.allangregg.com.

200 years ago today, in what is now called Moraviantown, Ontario, the great Shawnee warrior, Tecumseh was killed defending Canada against invading American troops during the War of 1812. After waging a fearsome battle with the encroaching American militia for over five years, Tecumseh had struck terror in the hearts of American settlers, soldiers and commanders alike. His alliance with the British General, Isaac Brock, and their victory at Detroit, decisively shifted the early momentum in the War to Canada’s favour. No longer could the Americans boast that victory would be (as Thomas Jefferson promised then President James Madison) “a mere matter of marching.” Indeed, it can be said that it was Tecumseh - as much as any other single individual - who saved Canada in the War of 1812.

But the constitutional standing of the tar sands – one of the world’s largest and most carbon-intensive energy projects – is just what’s at stake in a treaty rights claim the Beaver Lake Cree Nation (BLCN) is bringing against the Governments of Alberta and Canada in a case that promises to be one of the most significant legal and constitutional challenges to the megaproject seen in Canada to date.

Signaling the high-stakes of the whole dispute, it has taken five years of beleaguered fighting just to have the case go to trial. Canada and Alberta – the defendants – fought tooth and nail during those five years to have the claim dismissed outright, saying the case put forward by the BLCN was “frivolous, improper and an abuse of process.”

When the ACFN applied for an adjournment, in that case, their request was denied. In response the First Nation is claiming they have “no other option but to file legal arguments for the protection of their constitutionally protected rights through the Alberta Court of Appeal.”

The government’s refusal to consider the ACFN’s best defense against the megaproject, which will increase Shell’s tar sands bitumen mining capacity in this one project alone by 100,000 barrels per day, appears out of step with the federal government’s own admission that they must accommodate the rights of First Nations when considering industrial projects that entail irreversible impacts.

First Nations rights, especially as defined in the 1982 Constitution and subsequent court decisions, must be accommodated, according to an internal federal discussion paper, released to Greenpeace Canada’s climate and energy campaigner Keith Stewart through access to information legislation.

The proposed agreement, signed by Stephen Harper in Russia on September 9 and kept secret until September 26, is being strong-armed through the house of commons after the required 21-day session in Parliament. Political action and environmental groups, opposition party leaders and experts in the field of international trade law are urging the Harper government to reconsider the agreement's immediate ratification, demanding an open parliamentary debate before the trade deal's future is decided.

Under FIPA the federal government is obliged to protect investor rights and profits, even to compensate for lost profits. That means when it comes to disputes involving Chinese investors, like the one over the future of Enbridge's Northern Gateway Pipeline, the Canadian government will have a duty to protect investor profits and not necessarily the jurisdictional rights of the British Columbian government, people or First Nations.

The proposed Enbridge Northern Gateway Pipeline spans a massive stretch of provincial territory from Edmonton, Alberta to Kitimat, B.C. Over 50 percent of the planned pipeline and tanker routes snake through First Nations territory, which prohibits such development according to their traditional laws.

“With over 100 pipeline spills and accidents recorded in Canada over the past two years there is only one thing to say about pipelines; they will spill.” These words, from Dene National Chief Bill Erasmus, marked the passing of a resolution, unanimously signed by 35 Chiefs of Denendeh, to oppose the pipeline’s construction.

Now, this powerful front of aboriginal nations are demonstrating their solidarity with the Yinka Dene Alliance. “These Nations now have the support of Dene from northern Alberta to the Arctic coast,” says Erasmus.

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